IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150006373 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of her general discharge under honorable conditions and change to the narrative reason for her separation. 2. The applicant states: * Army Regulation 601-280 (Army Retention Program), paragraph 11-15c, Part III, states Soldiers' previous conditions are discussed prior to reenlistment * she reenlisted in February 2008 and was eligible for reenlistment * in March 2008, her chain of command enforced previous conditions and patterns of misconduct after her reenlistment * patterns of misconduct were not established and she was wrongfully discharged in June 2008 * the reference to patterns of misconduct should be removed from her DD Form 214 (Certificate of Release or Discharge from Active Duty) and the characterization of her service should be upgraded to honorable * she is unable to obtain a waiver to return to active duty military service with her current narrative reason for separation and characterization of service * she had 8 years of service at the time of her discharge, yet was not given the opportunity to appear before an administrative separation board * she reenlisted in the Army in January 2008 and her discharge paperwork was not begun until February 2008 after her reenlistment, thus her prior misconduct should not have been cause to justify the discharge and characterization of her service 3. The applicant provides: * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) * DA Form 5689 (Oath of Reenlistment) * Enlisted Record Brief * 3d Brigade Combat Team, 3d Infantry Division, memorandum, dated 9 April 2008 * DD Form 256A (Honorable Discharge Certificate) * DD Form 214 * partial informational document of unknown origin referencing reenlistment eligibility and prior convictions CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. After a prior period of over 4 years combined in the Army National Guard and the U.S. Army Reserve, the applicant enlisted in the Regular Army on 13 June 2004. 3. Records indicate she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 April 2007 for hitting a noncommissioned officer on the arm with her fist at Forward Operating Base Hammer, Iraq, and again on 24 January 2008 for willfully disobeying a lawful order from a senior noncommissioned officer on 16 January 2008 at Forward Operating Base Hammer, Iraq. 4. On 13 February 2008, she reenlisted in the Regular Army. 5. A Report of Mental Status Evaluation, dated 19 March 2008, found the applicant to be fully alert and oriented with unremarkable mood or affect, clear thinking, normal thought content, and normal behavior. She was found to have the mental capacity to understand and participate in the proceedings, she was mentally responsible, and she met the retention requirements of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). She was psychiatrically cleared for any administrative action deemed appropriate by her command. 6. On 25 March 2008, her immediate commander initiated discharge action against her for a pattern of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b. The memorandum initiating separation action stated the reasons for the proposed action were: * on 2 April 2007 – she assaulted a noncommissioned officer * on 2 April 2007 – she was disrespectful in language to a noncommissioned officer * on 1 October 2007 – she was derelict in the performance of her duties by not refueling the generators * on 8 November 2007 – she failed to be at her appointed place of duty, namely fire marshal class * on 16 January 2008 – she failed to obey a lawful order from a senior noncommissioned officer * on 16 January 2008 – she was disrespectful in deportment by walking away from a senior noncommissioned officer * on 6 March 2008 – she was disrespectful in deportment toward a noncommissioned officer * her record of disciplinary action which includes two counts of NJP under Article 15 of the UCMJ 7. On 9 April 2008, she acknowledged notification from her commander of the basis for the contemplated action to separate her under the provisions of Army Regulation 635-200, chapter 14, its potential effects, and the rights available to her. She acknowledged she had the right to consult with military counsel and submit statements on her own behalf. She requested to have her case heard by an administrative separation board, which was her entitlement by virtue of attaining 6 years of creditable service. She understood she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her. 8. An initial legal review of the separation action, dated 6 June 2008, found the action to be legally insufficient based on the applicant's request for an administrative separation board review and her command's determination she was not entitled due to less than 6 years of creditable service. Army Regulation  635-200, paragraph 2-2, states a Soldier is entitled to a hearing before an administrative separation board if he or she has 6 or more years of total Active and Reserve service on the date of initiation of recommendation for separation. The legal review could not definitively determine whether she received enough creditable service for her time in the Army National Guard, U.S. Army Reserve, and Regular Army to amount to the requisite 6 years. 9. On 11 June 2008, she again acknowledged having been advised by counsel of the basis for her contemplated separation and its effects, the rights available to her, and the effect of a waiver of those rights. In this second acknowledgement she voluntarily waived consideration of her case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than general under honorable conditions and further withdrew her 9 April 2008 request to have her case heard by an administrative separation board. She did not submit statements in her own behalf. She acknowledged that if the separation authority refused to accept the conditional waiver of a hearing before an administrative separation board, her case would be referred to an administrative separation board, in which case she would request personal appearance before the administrative separation board and request counsel. She acknowledged she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her and that she may be ineligible for many or all benefits under both Federal and State laws as the result of such a discharge. 10. A second legal review of the discharge action, dated 12 June 2008, found the separation packet to be legally sufficient to support her separation with a general discharge under honorable conditions. It noted that if a discharge under other than honorable conditions discharge were desired by the approval authority, the separation action would require re-initiation under administrative board procedures. 11. On 18 April 2008, the Commander, 3d Brigade Combat Team, 3d Infantry Division, approved the recommended discharge for patterns of misconduct under the provisions of Army Regulation 635-200, chapter 14. He directed the issuance of a general discharge under honorable conditions. 12. On 20 June 2008, she was discharged under honorable conditions (general) for patterns of misconduct under the provisions of Army Regulation 635-200, chapter 14. Her DD Form 214 shows she was credited 4 years and 1 day of net active service during that period. 13. On 9 April 2010, the applicant applied to the Army Discharge Review Board for an upgrade of her discharge. On 9 March 2011, the board determined her discharge was both proper and equitable and denied her request. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 15. Army Regulation 601-280 prescribes the criteria for the Army Retention Program. Paragraph 11-15 (DA Form 3286 (Statements for Enlistment – Parts I through IV) states: a. The DA Form 3286 is designed to preclude the possibility of erroneous reenlistments, broken reenlistment commitments, and misunderstandings concerning entitlements, assignments, and other matters relating to the reenlistment contract. b. Part III (Statement of Law Violations and Previous Conditions) will be completed by all applicants who enlist or reenlist in the Regular Army. Questions concerning convictions will be answered, to include convictions by either a civil or military court. This does not apply to offenses previously waived and/or documented on previous enlistment or reenlistment documents. Offenses not previously waived and/or documented, to include those occurring on the current term of enlistment or reenlistment, will be listed. Article(s) 15 is nonjudicial punishment and will not be listed as conviction(s). The information is used to determine the Soldier's eligibility for reenlistment and will not be used for any other purpose. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for upgrade of her general discharge under honorable conditions and change to her narrative reason for separation was carefully considered. 2. The available evidence shows she was properly and equitably discharged in accordance with the regulations in effect at the time pertaining to patterns of misconduct. She initially requested consideration by an administrative separation board, but later waived her right to an administrative board contingent upon receiving a service characterization no less favorable than general under honorable conditions, which she did receive. There is no indication of procedural errors which would have jeopardized her rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. The applicant claims that Army Regulation 601-280, which prescribes the criteria for the Army Retention Program, contains provisions disallowing for her separation relative to the completion of a DA Form 3286. The DA Form 3286 is designed to preclude the possibility of erroneous reenlistments, broken reenlistment commitments, and misunderstandings concerning entitlements, assignments, and other matters relating to the reenlistment contract. The applicant's completion of a DA Form 3286, which is not in her available record for review, in which she likely responded to the prepopulated questions concerning convictions by either a civil or military court during the reenlistment process has no bearing on her discharge for patterns of misconduct and would not preclude such a discharge. She was neither discharged for erroneous reenlistment due to non-waivable disqualifications nor does she appear to have had any civil or military court convictions. 4. Her records reflect her acceptance of NJP under the UCMJ on two separate occasions. Based on her record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an honorable characterization. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150006373 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006373 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1